Jeremy D. Morley

Will a foreign country divorce be recognized in the United States if the parties both appeared in the foreign proceeding but neither of them was domiciled in that country? Yes, say the courts in New York. No, say many other courts.

But recently, the Fourth Circuit Court of Appeals, in a landmark case, held that a divorce obtained in a foreign nation by its own citizens is not invalid in Virginia simply because these citizens were not domiciled in their home country at the time of the divorce. Adjei v. Mayorkas, 59 F.4th 659 (4^th Cir. 2023). It ruled that their citizenship in that country provided an adequate relationship between person and place to justify the foreign nation's exercise of control over their marital status. The impact of this decision has not yet been fully recognized.

The New York rule was established in the well-known decision in Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 262 N.Y.S.2d 86, 209 N.E.2d 709 (1965). Both spouses had traveled from New York to Mexico specifically in order to obtain a quick divorce pursuant to the liberal jurisdictional requirements there. The New York Court of Appeals stated that the state or country of the parties' true domicile has the closest real public interest in a marriage but that if a New York spouse can go to somewhere such as Nevada for six weeks in order to establish a synthetic domicile so as to meet technical acceptance for a matrimonial suit, New York's public interest would not be affected differently by a short residential formality than by a larger one.

Other courts disagreed. A Florida court annulled a 15-year Connecticut marriage on the ground that a Dominican divorce decree had not effectively ended the wife's prior marriage. The parties to the first marriage had each consented to the divorce and one of them had traveled to the Dominican Republic, but neither had been a domiciliary or resident of that country. Lopes v. Lopes, 852 So. 2d 402 (Fla. 5th DCA 2003). Indeed, a New Jersey court upheld the criminal prosecution of a tour company for consumer fraud by offering package trips to Haiti to procure a Haitian divorce. The tour offerings were a fraud upon purchasers, since such divorces were for all practical purposes worthless. Kugler v. Haitian Tours, Inc., 120 N.J. Super. 260, 293 A.2d 706 (Ch. Div. 1972).

Likewise, the Court of Appeals for the First Circuit ruled that under Rhode Island law a woman who had procured a bilateral Dominican divorce was still married and  accordingly was not entitled to receive certain insurance benefits.  Slessinger v. Secretary of Health and Human Services, 835 F.2d 937, 20 Soc. Sec. Rep. Serv. 125, Unempl. Ins. Rep. (CCH) P 17843 (1st Cir. 1987).

The same principle was even applied when the parties were New Yorkers at the time of their Dominican bilateral divorce and one of them then remarried in another U.S. state.  In a Florida case the spouses were living and domiciled in New York when they were divorced in the Dominican Republic. They took the necessary steps under New York law to make the Dominican divorce effective in New York since the wife signed a power of attorney and the husband flew to the Dominican Republic and spent six days there to secure the divorce decree. The divorce was valid under New York law. But subsequently the (ex-) husband moved to Florida and held himself out as married to another woman. Upon his death, a Florida appellate court declared that he was still married to his original wife since Florida courts would not recognize a foreign nation's divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered. In re Schorr's Estate, 409 So. 2d 487 (Fla. 4th DCA 1981).

But practitioners should now consider the impact of the Fourth Circuit's ruling in Adjei. The spouses in that case were citizens of Ghana who, while living  and domiciled in the United States, were divorced in Ghana. The wife then purported to remarry and sponsored her new husband for citizenship. The U.S. Citizenship and Immigration Services denied the new husband's application for U.S. naturalization on the ground that his purported marriage to a U.S. citizen was invalid since the Ghanaian divorce would not be recognized in Virginia. The lower court recited the long-standing principle that Virginia will grant comity to an act of another sovereign only if (1) the other sovereign had jurisdiction to enforce its order within its own judicatory domain, (2) the relevant law of the other sovereign is reasonably comparable to that of Virginia, (3) the decree was not obtained through fraud, and (4) enforcement of the other sovereign's decree would not be contrary to the public policy of Virginia.

On appeal, the Fourth Circuit disagreed, stating that,

·                 “Citizenship in a nation, like domicile in a state, “implies a nexus between person and place of such permanence as to control the creation of legal relations.” 

·                 In analyzing the issue of Virginia's public policy, that it did not follow that Virginia would refuse to recognize, as a matter of comity, a divorce issued by a foreign nation simply because Virginia itself would not grant a divorce under similar circumstances. 

·                 This was especially true where, as in the case at bar, the basis for the foreign nation's jurisdiction to grant the divorce was the divorcing parties' citizenship in that nation, a basis that “has no independent analogue in the domestic context.” 

·                 Although some states such as Nevada, had expressly forbidden the recognition of all out-of-state divorces where both spouses are domiciled in the state where recognition is sought, Virginia law did not so provide. Furthermore, the Supreme Court of Virginia had repeatedly recognized that the public policy of Virginia favors recognizing divorces whenever possible, so that one's marital status does not change with one's location. 

·                 If the divorce is followed by a subsequent marriage, Virginia's interest in uniformity in marital status was reinforced by an even more foundational aspect of its public policy: upholding the validity of the marriage status as for the best interest of society.” 

·                 The importance of recognizing out-of-state divorces has only increased with advances in transportation, citing New York's Rosenstiel case, and the fact that the world has become even smaller and more mobile since then. 

·                  “Given these precedents, we believe when absent any fraud, a couple has married relying on a consensual divorce granted by a foreign nation to its citizens, and in accordance with its laws, Virginia public policy would favor recognition of the divorce upon which the second marriage's legitimacy depends.” 

The Fourth Circuit's reasoned decision will likely have a significant impact on future disputes concerning these important issues.